The right to peaceful protest must not be suspended via public health order

The legal right to peaceful protest is fundamental to our democracy. Protests hold governments to account and make our country better. While the powerful few are able to write cheques or call their friends in high places, protests are how the invisible or ignored can become seen and heard by government. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander people win the right to vote, did LGBT+ people achieve marriage equality, and did unions secure the eight-hour work day.

In Australia, protests have been instrumental in both protecting and securing human rights and civil liberties. Often, protests are one of the few ways that marginalised and vulnerable people are able to express their political opinions and political beliefs and garner support from the wider population to advance their causes.

The freedom to come together to express our opinions on issues we care deeply about is precious and should be protected and respected by governments and the police. The right to peaceful protest is protected by International Human Rights law.

We must carefully examine any restrictions to the right to protest, including in times of emergencies – including during a pandemic.

The NSWCCL recognises the need for some restrictions to be put in place to protect our community from COVID. Every human being has the inherent right to life which should be protected by law. We also recognise the extra pressures that this situation places on all emergency services, including the police force.

However, it must also be recognised that lockdowns and border closures inevitably restrict some of our fundamental rights. Consequently, the law requires that any restrictions must be necessary, proportionate and justified. The government must show that these restrictions are necessary to achieve a legitimate purpose (in this case safeguarding the health of the community) and that there are no less restrictive means to achieve this purpose.

The right to gather publicly and protest remains vital even during lockdown and must not be suspended without justification via public health restrictions. The adverse consequences of the public health restrictions are not shared uniformly across the community – they hit our most vulnerable and disadvantaged members of the community harder. Lockdown may be no great hardship for those who can work in reasonable comfort from home, but for those who cannot, it can be catastrophic. Casual workers and those who have been stood down, particularly those in the 8 LGAs with additional restrictions, are facing difficult decisions and circumstances. Many are relying on newly available financial support from the government for sustenance, but which still leaves them below the poverty line. Many are not eligible for any financial support from the government at all and are in dire circumstances. This is an urgent situation for many and the right to protest the government’s approach to this crisis cannot be put aside.

NSWCCL does recognise that the right to protest should be exercised in a peaceful and responsible manner, which means exercising it very carefully in the current circumstances. NSWCCL in no way condones violent or irresponsible protest that may expose others to a heightened risk of contracting COVID. Any protests that are conducted during the current pandemic should be exercised cautiously and be conducted as safely as possible. It is important to note in this context that recent information from the NSW Health Department reveals that the transmission of COVID has occurred in NSW indoors, with no confirmed cases of outdoor transmission of the disease.

Meanwhile, police should seek to carry out their activities in a constructive fashion and focus their efforts on assisting people to understand and comply with the public health restrictions and otherwise on situations that genuinely carry a heightened risk of transmission.

The heavy handed policing of a car-based protest last weekend is cause for concern. This protest involved approximately 50 cars that planned to convene on Mrs Macquarie Rd before driving in a circuit past Parliament House. Attendees were expected to wear masks, remain in their own cars, and not carpool, so there was no risk of this becoming a “spreader” event. The car convoy was initiated by United Workers Union members at the Annette Kellerman Aquatic Centre, who have been fighting for pandemic pay since they were stood down five weeks ago, at the start of the lockdown.

Despite the trouble taken by organisers to ensure that this protest would be COVID safe, police made every effort to prevent it from proceeding – consistent with the persistent approach by the Commissioner of Police to stamp out any protest activities for over a year now. Roads leading to the meeting point were closed; many attendees were stopped and ID checked; and nine people were issued fines totalling $9000 for breaching stay at home orders. During the protest, volunteer Legal Observers were also obstructed and ID checked (for more, see our letter to the NSW Police Commissioner: Police must not obstruct Legal Observers).

It is hard to argue that the police action in this case was necessary to achieve the legitimate purpose of safeguarding the health of the community. On the contrary, the highest risk of transmission arose as a result of police interventions in the peaceful protest, when protestors had to open their windows and go through ID checks. It is hard to escape the conclusion that the health restrictions were in this case – and in many other examples from the last year – repurposed to prevent legitimate protest.

NSWCCL is calling on the government and police to ensure that citizens seeking to safely and responsibly exercise their democratic right to protest can continue to do so throughout the pandemic.

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